The town is facing two lawsuits after Town Board members voted to rescind zoning for a Planned Development District, holding up plans a local rehabilitation support company had to build low-income housing.
After the vote to rescind the Planned Development District (PDD) designation at 179 Troy Schenectady Road, Rehabilitation Support Services (RSS), an Altamont-based company, brought two lawsuits against the town. One is under Article 78 in the state Supreme Court for not following proper procedures to change the zoning, while the second is a federal Fair Housing lawsuit for discrimination.
In October 2014, RSS proposed a low-income housing project at the Route 2 property called Colonie Hills. It would provide apartments for seniors, people with a range of disabilities and families making limited income.
With the surrounding area in a Commercial Office Residential zone (COR), the RSS project would require PDD zoning. The town’s Land Use Law states PDDs allow for flexible land use if the project is innovative in its “design in environmental, cultural and physical aspects” of the surrounding area, while also benefitting “community development.”
Since 179 Troy Schenectady Road already had PDD approval from a previous condominium project that fell through, Planning and Economic Development Director Joe LaCivita told RSS that it would need to apply to amend the PDD to build the low-income apartments, rather than begin the lengthy process of a new application, according to RSS representatives.
“We were on a serious search for a location where it would be possible to create housing unlike people have seen here in the Capital District before,” said William DeVita, RSS Executive Director. He said the Latham property was appealing due to its centralized location to public transportation, shopping centers and surrounding offices.
After an initial meeting with LaCivita on Oct. 12, 2014, RSS officials set up a meeting with Town Supervisor Paula Mahan for Nov. 10. According to RSS, its representatives were told Mahan was unavailable and Town Attorney Michael Maggiulli attended the meeting instead.
DeVita said that at the meeting, Maggiulli “started to suggest more than just an amendment to the existing PDD” would be needed. “At no time during the meeting we had with Mr. Maggiulli…did he state we had the option of submitting an amendment to the existing PDD.”
Maggiulli said this was untrue. “They were told they could file an amendment right up until Jan. 22. What they may have gotten confused is that filing an amendment, it’s a distinction without a difference, because it can bring up everything again.”
Maggiulli said in some cases, filing an amendment could be like beginning an application for PDD zonign from the beginning, which he indicated to RSS. He also said that RSS was not only changing the housing from condominiums to apartments, but the number of units, type of units and the location on the property.
“That could have triggered all sorts of different things. That’s just the nature of the beast,” said Maggiulli.
Currently, the Route 2 property partially houses a closed K-Mart, but in 2007, Swatling Acres was proposed and consisted of condominiums. An application for PDD was made and approved, but due to economic hardship, the project never went forward.
Maggiulli said in 2010, the town received a letter from the original developer stating he had no intention of going forward with the PDD, or getting final approval from the planning department.
The Colonie Hills project proposes 13 residential buildings with 128 units and a community center on the 38-acre property. According to RSS, the project would be a $30 million investment, generate more than 100 new construction jobs and fulfill a need in the town for low-income and handicap accessible housing.
After beginning applications for tax credits from the state, DeVita said RSS learned that on Jan. 22, 2015, a resolution would go before the Town Board to rescind the PDD for the property, which board members passed.
“Other projects…were dormant for many, many years, which the town did nothing on,” said Robert Schonfeld of Moritt and Harmoff, LLC, who is representing RSS in the federal discrimination lawsuit.
RSS officials allege the town revoked the PDD designation only after it received the application for tax credits and found that the apartments were partially intended to house people with special needs.
The official town code states that after at least three years of inactivity on a property given PDD approval, the approval has expired. Schonfeld said that three-year rule is “discretionary” and indicates “that disabilities were a factor in rescinding the PDD.”
When RSS officials looked into the PDD revocation, they allegedly found that not all proper procedures had been followed.
The state lawsuit filed under Article 78, which looks at whether proper and lawful procedures were followed or not, states the town did not look at all environmental impacts of rezoning from PDD back to COR, nor did the town properly consult with Albany County.
Allyson Phillips, associate at Young/Sommer, LLC, said that COR zoning could allow for a variety of uses on the property. It would have a larger impact on the environment and county given where the land lies, she said.
As well, she said that RSS was not properly notified about the public hearing that took place on Jan. 22 to rescind the PDD. Maggiulli said the town took all necessary rezoning procedures, and since RSS had not filed an official application, the town was not required to send RSS a notification by New York State Law.
RSS had from Oct. 12, 2014 to Jan. 22, 2015 to file for the PDD amendment, but nothing was filed, according to Maggiulli. He said the January date was set because the town was concerned as to why no application was made.
“It had all come up and we were questioning why no application had been put up at the time,” he said. “So we just had some questions in regards to their motives.”
While Maggiulli said it was hard to know why RSS did not file an application, he said it was possible RSS could have lost some funding since all zoning approvals were not in place.
The town faced a similar situation in 2012 with BCI Construction’s Loudon House project near 6 Schuyler and 151 Menands roads. For nearly two years, the project sat unfinished with only the elevator shafts and foundation complete due to the economic downturn in 2009. Town board members voted to rescind the PDD after the town received complaints from neighbors, putting pressure on BCI to finish the project in 18 months.
RSS officials said they are aware of the Loudon House project, but felt the town acted more carefully with Loudon House than Colonie Hills.
“With regard to a proposal to rescind PDD status for another site known as Loudon House, Colonie acted more deliberately and conducted various studies and referrals before deciding to seek to rescind the PDD status for that property,” stated the federal lawsuit documents, and that no such studies or referrals were made with Colonie Hills.
Phillips said at the Jan. 22 public hearing, RSS was not given a clear reason as to why the PDD was being rescinded. Documentation obtained under the Freedom of Information Law regarding the town’s rezoning request allegedly did not contain an environmental review.
The Loudon House project created controversy as well, said Maggiulli. The procedure for Colonie Hills was “the same that we do for every project,” he said. “It has nothing to do with either the nature of the people who were going to occupy the apartments.”
RSS will have a conference with the town in August regarding the discrimination claim, but Schonfeld said it was hard to know when it will be resolved or how. Phillips said the Article 78 proceedings should move more quickly.
Meanwhile, DeVita said RSS hopes to work with the town in getting Colonie Hills built to provide low-income housing, something the town has stated a need for in the past.
“We think it will be a great project when it is concluded. I think (the town) will be very impressed with the quality of housing and the type of project it will be,” said DeVita.
